TEST BANK
FOR
MASON AND STEPHENSON, JR.
AMERICAN
CONSTITUTIONAL LAW:
INTRODUCTORY ESSAYS AND
SELECTED CASES
SIXTEENTH EDITION
1
, INTRODUCTION: A POLITICAL SUPREME COURT
I. CHAPTER OUTLINE
Constitutional Interpretation and Political Choice
A Changing Judiciary
Beginnings
The Court Comes of Age
Judicial Business in the Nineteenth Century
The Modern Court
Appointment Politics, 1968–1984
From Warren to Burger
Fortas Resigns
Powell, Rehnquist, and Stevens
The First Woman Justice
Appointment Politics, 1984–1992
Whose Supreme Court Is It?
The Bork Debacle
End of the Brennan Era
The Thomas Maelstrom
Appointment Politics, 1992–2010
Ginsburg and Breyer
A New Chief Justice
The Obama Appointments
II. CHAPTER OVERVIEW AND OBJECTIVES
Understanding constitutional law today is helped by an awareness of the Court’s
institutional development. A summary of this development is presented early in the Introduction,
where it is seen that the Court’s first decade was characterized by obscurity, weakness, and
uncertainty as to what the institution would become.
Detracting from the attractiveness of the high bench in the early years was the circuit
riding Congress imposed on the justices, a duty not finally eliminated until 1891. In addition to
sitting collectively as the Supreme Court, justices sat as judges of the circuit courts, one of the
two types of lower federal courts established by the Judiciary Act of 1789. Although the act
provided for three types of courts (district courts, circuit courts, and the Supreme Court), it
authorized the appointment of judges only for the district courts and the Supreme Court. Except
for a brief period in 1801–1802, no separate circuit judgeships existed until 1855 (for California)
and then in 1869 for the rest of the nation. Each circuit court was at first staffed by two justices
(a number soon reduced to one) and one district judge. As a result, the early justices spent far
2
,more time holding circuit court than they did sitting on the Supreme Court. Despite Marshall’s
deserved reputation in constitutional law (as illustrated by Chapters Two, Six, and Eight
especially), the bulk of the Court’s work in Marshall’s time and for years afterward was
nonconstitutional. Private law cases vastly outnumbered public law cases.
The federal judiciary underwent important structural changes beginning in the late
nineteenth century that had major ramifications for the Supreme Court. First, in 1891 Congress
authorized intermediate appellate courts called circuit courts of appeals. For the first time, the
federal judiciary had appellate tribunals below the Supreme Court. For most cases, the old circuit
courts had not been appellate tribunals; a case began in either the district or circuit court
depending on the subject matter. The old circuit courts were soon merged into the district courts.
Circuit riding by the justices, already reduced substantially in the latter half of the nineteenth
century, came to an end (ironically just as interstate rail transportation had become faster, more
reliable, and more comfortable).
Second, the 1891 statute introduced some certiorari, or discretionary, jurisdiction. This
meant that there were fewer categories of cases the justices were legally obliged to hear and that
the new courts of appeals became the courts of last resort for many cases.
Third, as a result of intense lobbying by Chief Justice William Howard Taft (the only
president to have become chief justice), Congress in 1925 passed the Judges Bill, which
expanded discretionary jurisdiction even further. Now, the Court was in control of most of its
docket, not only in terms of the number of cases it would decide each year but also, for the most
part, of the issues it would confront. Taft’s political talents left another institutional legacy: the
Supreme Court Building. With construction finished in 1935, five years after Taft’s death, the
justices finally had a home of their own.
Today, in contrast to the docket in the nineteenth century, public law consumes the
Court’s time. Roughly half of the Court’s business now consists of constitutional cases, with
statutory interpretation accounting for almost all of the rest. Moving beyond its dispute
resolution role, the Court has become mainly a maker of public policy for uniform application
across the nation.
The remainder of the Introduction consists of a narrative and analysis of Supreme Court
appointments since 1968, beginning with the transition from the Warren Court (1953) to the
chief justiceship of Warren E. Burger and continuing through the appointments of justices Sonya
Sotomayor and Elena Kagan by President Barack Obama in 2009 and 2020. Students should find
this information instructive. Because appointments to the High Court are infrequent and occur at
irregular intervals, most students will have a very limited memory of all but perhaps the most
recent ones. The narrative in the Introduction places recent appointments therefore in the context
of those that have taken place over a span of more than four decades. But it is not only students
who will benefit. Instructors should find the introduction helpful because it lays out in concise
fashion recent appointment politics. As such, it is nearly unique among constitutional law
casebooks in providing this information in a single one-stop location. Thus, the material
demonstrates how the justices who have decided many of the cases included within American
Constitutional Law actually reached the Court.
3
, III. KEY TERMS
constitutional law
constitutional interpretation
cases
judicial review
recess appointment
circuit riding
seriatim opinions
diversity jurisdiction
Warren Court
IV. QUERIES AND SUGGESTED TOPICS FOR LECTURES, CLASS DISCUSSION, AND SELF-
ASSESSMENT
1. Does prior judicial experience make one better qualified for the Supreme Court? A look at the
Court’s roster in late 2010 reveals that all justices but one arrived on the bench with previous
service on one of the federal courts of appeals, most frequently on the Court of Appeals for the
District of Columbia Circuit. By contrast, as late as 1963, five justices were sitting with no
significant prior judicial experience. Justice Frankfurter, who reached the bench with no
experience as a judge, flatly declared in 1957 that “the correlation between prior judicial
experience and fitness for the Supreme Court is zero.” What qualifications should a president
consider when selecting a justice? Should there be a de facto judicial experience requirement for
appointment to the Supreme Court? Was the failure of the nomination of Harriet Miers in 2005
due to her lack of judicial experience or primarily to other objections or concerns?
2. All nominees to the Supreme Court in the past half century have appeared before the Senate
Judiciary Committee. Is this a desirable practice? If so, are there questions that senators should
(and should not) ask? Are there questions that nominees should (and should not) answer?
3. Is there an acceptable way to combine both judicial independence (made possible partly by life
tenure) with political accountability? One proposal calls for a constitutional amendment to fix a
term of 14 years for Supreme Court justices and other federal judges. In the fourteenth year, the
president in office could choose to reappoint the individual for another term of 14 years, or not.
As with the initial appointment, reappointment would be subject to approval by the Senate. What
are the strengths and weaknesses of this proposal?
4
FOR
MASON AND STEPHENSON, JR.
AMERICAN
CONSTITUTIONAL LAW:
INTRODUCTORY ESSAYS AND
SELECTED CASES
SIXTEENTH EDITION
1
, INTRODUCTION: A POLITICAL SUPREME COURT
I. CHAPTER OUTLINE
Constitutional Interpretation and Political Choice
A Changing Judiciary
Beginnings
The Court Comes of Age
Judicial Business in the Nineteenth Century
The Modern Court
Appointment Politics, 1968–1984
From Warren to Burger
Fortas Resigns
Powell, Rehnquist, and Stevens
The First Woman Justice
Appointment Politics, 1984–1992
Whose Supreme Court Is It?
The Bork Debacle
End of the Brennan Era
The Thomas Maelstrom
Appointment Politics, 1992–2010
Ginsburg and Breyer
A New Chief Justice
The Obama Appointments
II. CHAPTER OVERVIEW AND OBJECTIVES
Understanding constitutional law today is helped by an awareness of the Court’s
institutional development. A summary of this development is presented early in the Introduction,
where it is seen that the Court’s first decade was characterized by obscurity, weakness, and
uncertainty as to what the institution would become.
Detracting from the attractiveness of the high bench in the early years was the circuit
riding Congress imposed on the justices, a duty not finally eliminated until 1891. In addition to
sitting collectively as the Supreme Court, justices sat as judges of the circuit courts, one of the
two types of lower federal courts established by the Judiciary Act of 1789. Although the act
provided for three types of courts (district courts, circuit courts, and the Supreme Court), it
authorized the appointment of judges only for the district courts and the Supreme Court. Except
for a brief period in 1801–1802, no separate circuit judgeships existed until 1855 (for California)
and then in 1869 for the rest of the nation. Each circuit court was at first staffed by two justices
(a number soon reduced to one) and one district judge. As a result, the early justices spent far
2
,more time holding circuit court than they did sitting on the Supreme Court. Despite Marshall’s
deserved reputation in constitutional law (as illustrated by Chapters Two, Six, and Eight
especially), the bulk of the Court’s work in Marshall’s time and for years afterward was
nonconstitutional. Private law cases vastly outnumbered public law cases.
The federal judiciary underwent important structural changes beginning in the late
nineteenth century that had major ramifications for the Supreme Court. First, in 1891 Congress
authorized intermediate appellate courts called circuit courts of appeals. For the first time, the
federal judiciary had appellate tribunals below the Supreme Court. For most cases, the old circuit
courts had not been appellate tribunals; a case began in either the district or circuit court
depending on the subject matter. The old circuit courts were soon merged into the district courts.
Circuit riding by the justices, already reduced substantially in the latter half of the nineteenth
century, came to an end (ironically just as interstate rail transportation had become faster, more
reliable, and more comfortable).
Second, the 1891 statute introduced some certiorari, or discretionary, jurisdiction. This
meant that there were fewer categories of cases the justices were legally obliged to hear and that
the new courts of appeals became the courts of last resort for many cases.
Third, as a result of intense lobbying by Chief Justice William Howard Taft (the only
president to have become chief justice), Congress in 1925 passed the Judges Bill, which
expanded discretionary jurisdiction even further. Now, the Court was in control of most of its
docket, not only in terms of the number of cases it would decide each year but also, for the most
part, of the issues it would confront. Taft’s political talents left another institutional legacy: the
Supreme Court Building. With construction finished in 1935, five years after Taft’s death, the
justices finally had a home of their own.
Today, in contrast to the docket in the nineteenth century, public law consumes the
Court’s time. Roughly half of the Court’s business now consists of constitutional cases, with
statutory interpretation accounting for almost all of the rest. Moving beyond its dispute
resolution role, the Court has become mainly a maker of public policy for uniform application
across the nation.
The remainder of the Introduction consists of a narrative and analysis of Supreme Court
appointments since 1968, beginning with the transition from the Warren Court (1953) to the
chief justiceship of Warren E. Burger and continuing through the appointments of justices Sonya
Sotomayor and Elena Kagan by President Barack Obama in 2009 and 2020. Students should find
this information instructive. Because appointments to the High Court are infrequent and occur at
irregular intervals, most students will have a very limited memory of all but perhaps the most
recent ones. The narrative in the Introduction places recent appointments therefore in the context
of those that have taken place over a span of more than four decades. But it is not only students
who will benefit. Instructors should find the introduction helpful because it lays out in concise
fashion recent appointment politics. As such, it is nearly unique among constitutional law
casebooks in providing this information in a single one-stop location. Thus, the material
demonstrates how the justices who have decided many of the cases included within American
Constitutional Law actually reached the Court.
3
, III. KEY TERMS
constitutional law
constitutional interpretation
cases
judicial review
recess appointment
circuit riding
seriatim opinions
diversity jurisdiction
Warren Court
IV. QUERIES AND SUGGESTED TOPICS FOR LECTURES, CLASS DISCUSSION, AND SELF-
ASSESSMENT
1. Does prior judicial experience make one better qualified for the Supreme Court? A look at the
Court’s roster in late 2010 reveals that all justices but one arrived on the bench with previous
service on one of the federal courts of appeals, most frequently on the Court of Appeals for the
District of Columbia Circuit. By contrast, as late as 1963, five justices were sitting with no
significant prior judicial experience. Justice Frankfurter, who reached the bench with no
experience as a judge, flatly declared in 1957 that “the correlation between prior judicial
experience and fitness for the Supreme Court is zero.” What qualifications should a president
consider when selecting a justice? Should there be a de facto judicial experience requirement for
appointment to the Supreme Court? Was the failure of the nomination of Harriet Miers in 2005
due to her lack of judicial experience or primarily to other objections or concerns?
2. All nominees to the Supreme Court in the past half century have appeared before the Senate
Judiciary Committee. Is this a desirable practice? If so, are there questions that senators should
(and should not) ask? Are there questions that nominees should (and should not) answer?
3. Is there an acceptable way to combine both judicial independence (made possible partly by life
tenure) with political accountability? One proposal calls for a constitutional amendment to fix a
term of 14 years for Supreme Court justices and other federal judges. In the fourteenth year, the
president in office could choose to reappoint the individual for another term of 14 years, or not.
As with the initial appointment, reappointment would be subject to approval by the Senate. What
are the strengths and weaknesses of this proposal?
4
